Office of the Attorney General
State of Texas

Re: Purchase of Teacher Retirement credit for service as a teacher in the armed forces.

Dear Mr. Prewitt:

You have presented several questions for our consideration
concerning the ability of a member of the Teacher Retirement
System to purchase out-of-state teaching credit for teaching
while such person was a member of the United States Armed Forces.
In this regard, you first ask:

Does teaching at a United States military service academy or
teaching as an instructor in any Reserve Officers Training Corps
program while a member of the United States Armed Forces qualify
for purchase as out-of-state teaching service under Section 3.26
of the Texas Education Code?

Section 3.26 of the Texas Education Code states:

(a) Any member of the retirement system who has been
employed as a teacher or as an auxiliary employee in any public
school system maintained in whole or in part by any other state
or territory of the United States or by the United States for
children of United States citizens may purchase equivalent
membership service credits under this retirement system for such
service.

Certainly, there are numerous types of fact situations which
are encompassed in your questions, and the determination of
whether a particular situation falls within the statute involves
a determination of fact. The Legislature, in this case, has
specifically delegated the authority to make such fact
determinations to the State Board of Trustees of the Teacher
Retirement System in section 3.23, which reads, in pertinent
part:

(a) Under such rules and regulations as the State Board of
Trustees may adopt a member shall be allowed membership service
credit for each year of service rendered in accordance with the
provisions of this chapter if he has made and maintained with the
retirement system all deposits and payments required by this
chapter or prior existing laws. (Emphasis added).

In view of the foregoing, we cannot say as a matter of law that a
member of the military employed as a teacher in a United States
Armed Forces service academy or as an instructor in a Reserve
Officers Training Corps program in a public school, is or is not
eligible under 3.26 to purchase membership service credits.

Although your remaining questions are conditioned on an
affirmative answer to the first question, we will nevertheless
consider them on the assumption that should the State Board of
Trustees of the Teacher Retirement System reach an affirmative
conclusion on the issue presented by your first question, these
questions will become relevant. The remaining questions are as
follows:

[M]ay such service be purchased, at the option of the member
of the Retirement System, under either Section 3.26 of the Code
as out-of-state teaching service, or under Sections 3.23 and 3.24
of the Code as military service?

[M]ay such service be purchased twice by the member of the
Retirement System under both Section 3.26 of the Code as out-of-state teaching service and Sections 3.23 and 3.24 of the Code as
military service?

[M]ay such service be purchased by the member of the
Retirement System as out-of-state teaching service under Section
3.26 of the Code when the member has the maximum military service
permissible under Section 3.23 of the Code?

Section 3.26(a) (quoted above) permits any member of the
retirement system who has been employed as a teacher or auxiliary
employee in an out-of-state public school system to purchase
equivalent membership service credits for such service. Section
3.26(c) goes on to provide that:

(c) For each year that deposits are made, the member shall
be granted immediately upon payment of the required deposit one
year's membership service credit subject, however, to the special
conditions which are:

(1) No person shall be allowed to acquire credits on the
basis of employment as a teacher or auxiliary employee outside
this state in excess of one year for each one year of service in
Texas.

. . . .

(3) No more than 10 years' total credit can be purchased
under the provisions of this section.

Section 3.23 provides that:

(b) Any member who performed one or more years of military
duty while a member of the retirement system shall be permitted
to deposit to his individual account in the member savings
account for each year of duty an amount equal to his deposits
made with the retirement system during the last preceding full
year of service as a teacher or auxiliary employee. He shall
then be entitled to one year of membership service credit for
each year of military duty.

(c) Any member who performed one or more years of military
duty prior to becoming a member of the retirement system shall be
permitted to deposit to his individual account in the member
savings account for each year of such military duty, but not to
exceed five years, an amount equal to his deposits made with the
retirement system during the first full year of service as a
teacher or auxiliary employee after becoming a member of the
retirement system. He shall then be entitled to one year of
membership service credit for each year of military duty.
(Emphasis added).

If a member of the retirement system has performed such service
so as to fall within either of these categories, we can determine
no statutory basis for precluding that member from choosing the
category under which he wishes to purchase membership service
credits.

We note that section 3.24 contains no provision for purchase of
membership service credit. Instead section 3.24 allows a member
who has performed military duty to count years of military
service for the purpose of determining eligibility for retirement
but not for the purpose of calculating the amount of benefits
payable to the member on retirement. A person who has performed
military service but who fails to make deposits entitling him to
membership service credits under either section 3.26 or 3.23, may
still be granted military leave credits under section 3.24.

Therefore, we answer your second question in the affirmative:
a person eligible to purchase membership service credits under
both sections 3.26 and 3.23 has the option of choosing the
section under which he will purchase membership service credits.
If membership service credits have not been purchased the person
may receive military leave credits for time served on military
duty.

Your third question concerns whether a member who qualifies to
purchase membership service credits under both sections 3.26 and
3.23 may purchase double credits for the same period of time,
i.e. may purchase ten years' membership service credit for five
years of service as a member of the military and as a teacher in
an out-of-state public school system. Section 3.21 provides:

(a) The State Board of Trustees shall determine by
appropriate rules and regulations how much service in any year is
equivalent to one creditable year of service, but in no case
shall more than one creditable year of service be given for all
service in one school year.

(b) Years of creditable service at retirement . . . shall
consist of the number of years of membership service credits . .
. and military leave credits to which [a member] is entitled.
(Emphasis added).

The language of this section clearly prohibits the purchase of
double membership service credits for one year of service.
Additionally, we believe this section and section 3.24 prohibit
receiving unpurchased military leave credit for the same time
period for which a member has purchased membership service
credits. Therefore, your third question is answered in the
negative.

Your final question concerns whether a person who has received
maximum military membership service credits under section 3.23
may purchase additional membership service credits under section
3.26.

Under section 3.23(b) no maximum is placed on the number of
years of service credit which may be purchased by a member of the
retirement system who 'performed one or more years of military
duty while a member of the retirement system.' Section 3.23(c)
specifies that a member who performed his military duty prior to
becoming a member of the retirement system is limited to a
purchase of five years of membership service credits for
performance of military duty. If a person has been determined to
be eligible under both sections 3.23 and 3.26, we can find no
intention, embodied in affirmative legislation, to prohibit
purchase of additional years of service credit under section 3.26
beyond the maximum provided in section 3.23(c), as long as double
credit is not received for any one year. Cf. State v. Rapport, 69
A.2d 645, 648 (Conn. 1949). We believe such an interpretation
does not contravene the purpose of the Teacher Retirement System
statutes as expressed by the court in Teacher Retirement System
v. Duckworth, 260 S.W.2d 632, 636 (Tex. Civ. App.-- Fort Worth
1953) aff'd, 264 S.W.2d 98 (Tex. 1954):

[T]he principal purpose of our teacher retirement statute is
to provide support for teachers after their teaching days are
over, and courts should give such a statute a liberal
construction in order to effectuate the purpose intended.

Therefore, your final question is also answered in the
affirmative with the caveat that more than one year of credit may
not be received for any one year of service.

SUMMARY

If the Board of Trustees of the Teachers Retirement System
should determine that a member of the military who has taught at
a United States military service academy or as an instructor in a
Reserve Officers Training Corps Program is eligible to purchase
out-of-state teaching service credits under section 3.26 of the
Texas Education Code, that person may choose to purchase
membership service credits under either section 3.26 or 3.23. A
person may not receive more than one year of creditable service
for time served in any one school year and therefore may not
purchase double service credits under both sections. However, a
person who qualifies to purchase membership service credits under
both sections may purchase credits beyond the maximum allowed by
section 3.23(c) if he purchases the additional credits under
section 3.26 and he does not receive more than one year of
creditable service for service performed in any one school year.